CONSTITUTIONAL CRIMINAL PROCEDURE OUTLINE

A. INTRODUCTION:
 Balance b/t state powers and individual autonomy is essential
 Tip the scale too far one way → Totalitarianism too far the other way → Anarchy.
 The discussion must be framed in the context of the Constitution.
 Course focuses on the 4th, 5th, and 6th Amendments and their application to the States through the
14th.
o 4th, 5th, and 6th go through 3 stages of interaction b/t individual and criminal law enforcement.

Three Stages of Interaction:

1. 4th Amendment- Governs investigation process through search and seizure.
2. 5th Amendment- Custodial interrogation—state has custody over individual and attempts to obtain
information.
3. 6TH Amendment—Adjudication—Individual no longer a suspect, but a defendant, & is entitled to
competent counsel.

Brown v. Mississippi: Confessions obtained by (violent) coercion violate due process. The Due Process
clause of the 14th Amendment requires that state actions be consistent with fundamental principles of liberty
and justice.
 Confessions obtained by violent coercion violate DP.

B. EXCLUSIONARY RULE:
RULE: Evidence that is obtained in a way that violates constitutionally protected rights will not be
admitted in a prosecutor’s case in chief.
- This rule was created to take away any incentive for law enforcement officials to violate a suspect’s
constitutional rights.
- Exclusionary Rule = ER
Weeks v. United States: The U.S. and Federal officials are prohibited from performing unreasonable searches
and seizures.
 This case only applied to federal courts. Evidence obtained in violation of the 4th Amendment could
not be admitted into federal court.
Wolf v. Colorado: Evidence gathered by violating the due process clause through unreasonable search and
seizure can be admitted in state criminal proceedings.
Rochin v. California: Law enforcement may not procure physical evidence by fordable extraction of a Δ’s
stomach contents.
 Conduct that shocks the conscience → violation of the DP clause
Mapp v. Ohio: Evidence obtained through unreasonable search and seizure in violation of the 4th
Amendment is inadmissible in state criminal proceedings.
 Mapp is the case that the exclusionary rule DOES apply to the states!
 The Court found that the exclusionary rule is w/in the 4th Amendment itself, and is not just a police
decision, or rule of evidence.

1
  Mapp important b/c Δ was charged with a crime and the Q was whether the evidence could be used
@ trial. H/e, if the person was NOT ARRESTED → EXCLUSIONARY RULE DOES NOT
MATTER.
o Exclusionary rule is very limited.
o ER does not apply to plea bargains.

Federal State
Portal
14th DP through
4th
which these
5th amendments
reach the
6th states.

 4th amendment applies word for word to the federal government and state government.

C. FOURTH AMENDMENT—SEARCH & SEIZURE:

Seizure: occurs within the meaning of the 4th Amendment only when by means of physical force or
other show of authority the government asserts control over a person or object.
 In order for the 4th amendment to apply, there MUST be either a SEARCH or a SEIZURE.
 A person is seized when under the totality of the circumstances (TOC), a reasonable person would
not think she was free to leave, or otherwise end the encounter with the govt agents, because of the
govt agent’s actions.
 SCOTUS has found that the following add to the TOC indicating that a reasonable person wouldn’t
feel free to end the encounter with the police:
o Threatening presence of several officers;
o Display of weapons;
o Touching of the suspect;
o Use of language suggesting compliance w/ the officer wishes is compulsory.
 Police are NOT required to inform suspect that she has the right to decline their requests.
 Whether a suspect was in fact free to leave is NOT determinative.
o The question is whether a reasonable person in the suspect’s position would believe she was
free to end the encounter.
U.S. v. Mendenhall, Pt 1: A 4th Amendment seizure occurs when in the totality of the circumstances surrounding
the incident, a reasonable person would have believed they were not free to leave.
Michigan v. Chesternut: an investigatory pursuit of a person undertaken by the police may not constitute as a
seizure if a reasonable person would’ve believed she was able to leave and ignore the police and go about their
business.
 Δ was trying to claim that the chase was a seizure and t/f evidence of drugs should be excluded b/c
no justification for seizure.

2
  Court says no seizure b/c it was an investigatory pursuit, no lights, no sirens, no commands for Δ to
stop.
Florida v. Bostick: A police request for identification and to search private belongings does not amount to a
seizure.
Rule: Under the totality of the circumstances, would a reasonable person in the suspect’s position, would have
felt free to leave/terminate the encounter with the government agents?
If Yes → No Seizure.
If NO → is it b/c of the govt official’s behavior? If yes → SEIZURE
 Police can do whatever a normal every other person could do. The only difference is that police have
the authority to express dominion over a person.
[Involuntary v. Consensual] 2 sides of coin.
 If Δ decision to stay was consensual, then the police do not need reason, b/c no seizure.
 Consent only needs to be voluntary under the 4th Amendment.
o Not required that the person knows their right to not consent, or the consequences for not
complying.
 If already seized → already lost dominion over self → no ability to consent anymore.
 When we assume reasonable person—we are assuming a reasonable person who is not
breaking the law.
 Reasonable person is objective—no other factors to consider.
 Exercising one’s right alone does not give reason to seize.
 There are different levels of seizure/detention and they all have different levels of justification.
o You have to line up the justification and the search/seizure.
 Police turning on lights = order to stop = seizure.
 The smallest details can affect the totality of the circumstances.
There is a seizure if under the totality of the circumstances, the individual does NOT feel free to end the
encounter b/c of the actions of the govt official.
 Seizure if officer says “come here” in a way that is demanding rather than asking.
Seizures and Deadly Force:
Tennessee v. Garner: Deadly force may not be used unless it is necessary to prevent the escape and the
officer has probable cause to believe that the suspect poses a significant threat of death or serious physical
injury to the officer or others.
 The police officer MUST have Probable Cause to believe the suspect poses a significant threat of
death or serious bodily harm to the officers or others b/f deadly force can be used! TOC!!!
 Greater the intrusion, the greater justification that is required.
 If the required level of justification does not match the level of intrusion → 4th Amendment
violation.

Search: A search occurs when the state intrudes into a realm of life in which there is an objectively reasonable
expectation of privacy. (OREP)
 OREP = Objectionably reasonable expectation of privacy.
 Focus is on the people and their reasonable expectations of privacy—rather than a particular place.
o Place remains an important element in whether an expectation of privacy is reasonable.
3
Whether an expectation of privacy is subjectively and objectively reasonable generally depends on two factors:
1. Whether the suspect has exposed or concealed his information; and
2. Whether the setting in which the information is discovered is public or private.
 It is not objectively reasonable to expect privacy when we expose our conduct or information to the
public.
 If the information is discovered where the public has a legal right to be, there is no objectively
reasonable expectation of privacy in the information.
 The 4th Amendment protects people’s expectation of privacy not places.
 The home is recognized as the place where people enjoy the most OREP.
Katz v. United States: The 4th Amendment prohibition against search and seizures of physical items extends to
recordings of oral statements.
 The 4th is about protecting people not places.
 The Δ had OREP while in the phone booth.
 The focus was on whether the State’s action was an intrusion into an area of life where there is
an OREP.
 Court moves away from property-based focus of a search to OREP view.
 The areas that people have OREP have since shrunk.
Smith v. Maryland: A person has no legitimate expectation of privacy in information they voluntarily turn over
to third parties.
 Is the collection of data from the pen register a search under the 4th Amendment? No.
 It is not a search w/in the meaning of the 4th for police to collect information from the phone
company about who/what #s you called.
 B/c willingly turned over the information to a third party.
Florida v. Riley: Aerial observation of an area w/in the curtilage of a home by a helicopter is not a search
requiring a warrant under the terms of the 4th Amendment.
 Home → highest OREP
 Private but in public → a little OREP
 Exposed to the public → No OREP
 The State only needs to explain its actions and limit its action if the 4th Amendment applies.
 No OREP → 4th Amendment Does NOT apply.

NO OREP
Home ↑
OREP

Curtilage OREP

4
 Property Line = Some OREP

United States v. Jones: The warrantless placement of a GPS tracking system on the undercarriage of an
individual’s vehicle in order to track the person’s movements on public streets is an unlawful search in
violation of the 4th Amendment.
 The Court gets there (to the search) by reviving the trespass rule, by saying the government
trespassed on private property/chattels (Δ’s car).
 Trespass = search
In Re. Application of the FBI for an Order Requiring the Production of Tangible Things: The FREEDOM ACT
allowed the NSA to continue the bulk collection of telephone metadata from all domestic phone calls for a 180-
day period prior to the operation of the Act.
US v. Carpenter: Are we going to give the State so much power to monitor and find out where people have bene
for the past 10 years? Court says NO—this is too intrusive we need to separate the idea of something being
secret and something being private.
 There needs to be a barrier b/t person and the government.
 SCOTUS has recognized that there are different levels of intrusion into individual autonomy, which
requires different levels of justification.
 Generally, the greater the intrusion, the greater the preceding justification that is required.
 1st Justification → 2nd Intrusion.
 Once we decide that a search has occurred—we then have to ask whether it was reasonable.

o Reasonableness is determined by justifications.

 If there is justification → Reasonable
 If there is NO Justification → Unreasonable.
 What kind of Intrusion? What kind of justification?

Justifications & Intrusions:

Probable Cause (PC):
PC = Fair Probability = Standard that is less demanding than more-than-likely-than-not, based on
common sense view of the TOC.
 There are TWO kinds of PC for the purposes of the 4th Amendment:
1. Probable cause to Search; and
2. Probable cause to Seize.
PC to Search exist when there is a fair probability that evidence of a crime, or a person who has committed a
crime, will be found in a particular place.

5
PC to seize property exists and property may be seized if there is a fair probability that it is evidence of a
particular crime.
 People may be placed in custodial detention if there is a fair probability that they have committed a
particular crime.
Illinois v. Gates: A warrant application satisfies the 4th Amendment PC requirement so long as it establishes a
substantial basis for concluding that a search will uncover evidence of that wrongdoing.
 The warrant requirement sets up an institutional barrier b/t the exercise of executive state power &
the autonomy of the individual.
o Before the exec arm of the state can intrude too far into an individual’s autonomy, by
conducting a full search or seizure, it must convince a neutral judicial officer that the
proposed intrusion is justified.
RULE: Warrant is required for any intrusion where PC is required.

Reasonable Suspicion:
 In Terry v. Ohio, SCOTUS held that lesser intrusions that were merely investigative rather than full
searches & seizures required less than PC to justify them, but still required some justifications.
RULE: Investigative detentions (Terry Stops) require reasonable suspicion that criminal activity is afoot.
RSCAA = Reasonable Suspicion Criminal Activity Afoot.
Rule: Investigative searches (pat downs, frisks) require above RSCAA and reasonable suspicion suspect is
armed and dangerous.
RSSAD = Reasonable Suspicion Suspect Armed & Dangerous.
Terry v. Ohio: when an officer observes unusual conduct that reasonably leads him to assume criminal
activity is afoot & that the people, he is interacting with are armed, the officer may conduct a limited search
for weapons.
 You can engage in a limited search & seizure in limited circumstances.
 RSCAA—from the officer’s perspective—is there a reasonable suspicion that criminal activity is
afoot?
Rodriguez v. United States: Under the 4th Amendment, a police officer may not prolong a routine traffic stop to
have a drug sniffing dog walk around the vehicle.
 Traffic stop = intrusion/seizure w/in 4th Amendment.
 Cop had required justification to stop Δ and therefore, it was reasonable seizure for traffic stop.
o H/e when cop held Δ after giving the ticket, the seizure became unreasonable.
6
  If officer to issue a new detention after the other was complete, the officer needs new justification in
order to continue to detain the suspect.
 The 2nd temporary seizure had no justification prior to the seizure.

REASONABLE SUSPICION CRIMINAL ACTIVITY AFOOT/ ARMED & DANGEROUS:

 Terry created the rule that an officer may temporarily detain a suspect w/due regard for her
experience—she has reasonable articulable suspicion that criminal activity is afoot.
o The temporary detention is to confirm or dispel the suspicion.

 Generally, a warrant is needed in addition to PC for a full search.

 Custodial detention = formal arrest or its equivalent.
Navarette v. California: an anonymous tip is enough to support a reasonable warrantless search if the tip
contains sufficient indicia of reliability.
 Reasonable suspicion depends on “the factual & practical considerations of everyday life” on which
a reasonable & prudent person, not legal technician acts.
 Ask myself whether the officer has RSCAA—the answer will determine whether there was
justification for the intrusion.
o If No RSCAA → no justification → violates the 4th Amendment.

 Look at the totality of the circumstance’s w/regard to the officer’s experience.

Illinois v. Wardlow: A police officer may stop and frisk a citizen on the street when he has reasonable
suspicion that the person is armed and may pose a risk to the officer.
 SCOTUS says that unprovoked flight by a person in a high crime area provides reasonable suspicion
for a Terry stop.
 Flight by itself is not enough.
 If during a Terry stop the officer does not learn facts that rise to the level of probable cause, the
individual must be allowed to go on his way.
 Δ fleeing after seeing the officers while in a high crime area, makes it okay for officers to stop that
person (Δ) & conduct a search (investigate).
o Running in a high crime area away from officers is enough to create RSCAA → investigative
detention allowed.
 If the officer suspects person is involved in drugs/drug dealing, then automatic RSSAD.
RSSAD:
7
  You need BOTH RSCAA AND RSSAD in order to justify an investigative search.
 It is possible that the fact that someone is armed and dangerous creates RSCAA, depending on the
context.
Arizona v. Johnson: to justify a pat down of a driver or passengers during a lawful traffic stop, the police
MUST have RSSAD.
RULE: When a car has been stopped, SCOTUS says everyone in the car is subject to an investigative
detention.
Mimms Rule: if a vehicle has been lawfully detained for a traffic violation, the driver may be ordered to step
out of the vehicle w/out violating the 4th.
 This also applies to passengers as well. The passengers are seized just as the driver is and remains
for the duration of the stop.
 SCOTUS says RSCAA applies to all in the car during the traffic stop.
 The stop ends when officers no longer need to control the scene & inform the driver & passengers,
they are free to leave.
o Inquiries into unrelated matters to the justification of the stop do not convert the
encounter into something other than lawful seizure as long as the inquires do not extend
the duration of the stop.
 If you are in an ID, you MUST cooperate with officials
 You can suspect someone is armed & dangerous, but you CANNOT pat them down w/o
RSCAA!
 Very low bar to step over to get to RSSAD after reaching RSCAA.
 Even if officer’s order to stop is unlawful, it does not allow you to ignore the cops to go on your way
and disobey the order.
o Running away can/will create probable cause to arrest.

 A suspect asking if they are free to leave does not get calculated into the Reasonable suspicion
calculation. However, an evasive answer does.

ADMINISTRATIVE & INVENTORY NEEDS & CONSENT:

 Administrative & Inventory Searches = A/IN
No justification required for admin or inventory search beyond reasonable needs of the government
entity carrying out the search.

8
  Govt entities may take DAN samples from arrestees whose arrest are justified by PC for purposes of
identification and administration. Similar to taking fingerprints—no additional justification is
required beyond PC to arrest.
o Even if DNA is used to check against existing DNA samples from unsolved crimes that are
unrelated to the crime for which there is PC.
 No justification beyond general admin needs required for jail admin to conduct full cavity search of
inmate.
 Lawfully seized vehicle may be searched to establish inventory for its contents even w/out other
justification to search the vehicle.
Florence v. Board of Chosen Freeholders County of Burlington: A strip search in jail for those who commit
minor offenses does not require reasonable suspicion.
 Strip search is to keep contraband out of jail, as well as for identification needs.
 Wardlow is the case that cites that running away from a police officer creates reasonable suspicion.
When an officer has RSCAA they are justified to seize the person for an investigative detention to
confirm or deny the RSCAA.
 If not confirmed, justification to continue is no longer there.
 PC went away after Δ paid the fine, so warrant should have been erased for some reason it was not.
Δ was arrested b/c of the warrant, and was strip searched while being admitted to jail. Δ argues that
body search violated the 4th b/c there was no search warrant and his arrest warrant was not “valid” t/f
no PC for search. Court says the 4th says this type of search is okay as long as there is a legitimate
security interest.
 Court says that they are not going to micro-manage and they will let the experts decide the
procedures. This is why TSA search is okay (applies to everyone).
 When a person or item like a car are seized, i.e., vehicle impounded, no PC required to search for
inventory purposes. (INVENTORY SEARCHES)
Administrative & Inventory Searches: Permitted to search as much as legitimately needed by the
government.

CONSENT:
Neither a search nor a seizure needs to be justified if the affected party consents.
 Consent needs only to be voluntary at the party’s own free will.

9
  This consent is not the same as decision to waive right to counsel, or silence in the context of
custodial interrogation.
 Consent for search and seizure is valid even if party giving it doesn’t know she can refuse or that
there can be serious legal consequences for giving the consent.
 Voluntary = product of one’s own will.
o Does NOT need to know the consequences.
o If person is seized, consent less likely to be voluntary.
 Greater the seizure, less likely consent is voluntary.
 Do not need to ask for consent, if they do not need it.
 If they ask for consent it may suggest that the officer did not think they had RSCAA.
United States v. Mendenhall, Pt. II: Δ’s decision to follow the officers and remover her clothes to be searched
for drugs was voluntary. Δ voluntarily went with the DEA officers.
 Whether consent is voluntary is to be determined by the totality of the circumstances.
 You can withdraw consent at any time, h/e if officer already found enough for RSCAA or PC,
withdrawing the consent will not matter.
 It is not required to know if one can refuse but, if told that cannot refuse—that will be the most
important factor to determine consent.
United States v. Drayton: The police may request consent to search a person even if they don’t have a basis for
suspecting that individual of illegal activity and the citizen is not subject to a 4th Amendment seizure if a
reasonable person would feel free to leave.
 Whether or not someone has something to hide will not affect the decision of whether the consent
was voluntary.
 Court said that just by the officers saying “can I, may I, etc., search your _____” it is implied that
one can respond yes, or no.
 The Court looks at the totality of the circumstances.
 Would a reasonable person in the same situation, feel that they could refuse.

PRETEXT:
 Pretext = the reason given in justification of an action that is not actually the real reason.
As long as a government agent has PC to believe you have broken the law, they can search &/or seize you.

10
Whren v. United States: Except with inventory searches and administrative inspections, when PC of illegal
conduct exists, an officer’s true motives for searching or detaining a person does not negate the
constitutionality of the search or seizure.
 Officer’s subjective reason for stopping the car is irrelevant as long as they have PC.
 Does not matter what motivated the officer, as long as there was justification.
 Actual motivations of an officer/individual do not matter for the purposes of justification for
intrusion.

EXCEPTIONS TO THE WARRANT REQUIREMENT:

 WR = Warrant Requirement.
 Need to make sure probable cause.
o If NO PC → NO WARRANT OR WR EXCEPTION!

 Full search or seizure requires: (1) PC; AND (2) Warrant or WR exception.
 Terry stop is not a WR exception.
 Even if a warrant is not required, probable cause is still required!
 Flight = justifies the custodial detention b/c it creates RSCAA.
 TN v. Garner tells us the amount of force that can be used in these circumstances can be relatively
high.
 Being on/trespassing on private property by a fleeing suspect & the police + police searching for the
suspect = a search w/in meaning of the 4th.
o B/C violation of the trespass common law clause. t/f PC or consent is needed.
o Police need PC and a warrant or WR exception.
 Exigent circumstances is the exception.
A Full Search OR Seizure Requires:
1. Probable Cause; AND
2. a.) Warrant; or
b.) Exception to the warrant requirement.
Exceptions to the general warrant requirement for SEARCHES:
1. Searches incident to a lawful arrest;
2. Searches within automobiles;
3. Protective sweeps;
11
 4. Searches conducted under exigent circumstances; and
5. Administrative & Inventory searches that require PC.

Exceptions to the general warrant requirement for SEIZURES:

1. Persons arrested in a public place;
2. Items discovered in plain view or through plain feel;
3. Items that are mobile;
4. Persons or items seized under exigent circumstances.
 An arrest in a public setting is an exception to the WR (public arrest exception)
 A fleeing suspect is also an exception to the WR for an arrest.
 The warrant creates a record that police/exec branch taking someone/something into custody.
Exigent Circumstances (EC):
 PC + (1), (2), or (3).
Police must believe evidence of a non-misdemeanor crime will be found in a particular place, AND in
addition to PC, ONE of the THREE circumstances MUST be present:
1. Police must be in hot pursuit of suspect;
2. Imminent danger to public safety (including the suspect’s safety);
3. Imminent danger that evidence will be destroyed.
If exigent circumstances apply—Police may enter into a private space, search it, seize object or
people without a warrant.
Mincey v. Arizona: The fact that a homicide occurred does not justify making an exception to the warrant
requirement to search the suspect’s home.
 Arizona’s “murder scene exception” violated the 4th & 14th Amendments.
Kentucky v. King: The exigent circumstances exception applies to officer created exigency if the exigency does
NOT arise from the officers unreasonable or unconstitutional conduct.
 Knocking on the door is no different than what anyone else can do.
 Occupant has no obligation to open the door or speak.
 Announcing that they would break down the door if the occupants did not open the door would be a
violation of the 4th Amendment.
 If the police create the EC in order to avoid the WR, then a warrant IS required, b/c EC is not valid!

12
 Exigent Circumstances Doctrine (EC)= Officers may enter (search) a home w/o a warrant to: (1) deliver
emergency aid; (2) pursue a fleeing suspect; or (3) to prevent imminent destruction of evidence. PC that
dangerous or suspicious activity is occurring is required prior to the search!
Missouri v. McNeely: in drunk-driving investigations the natural dissipation of alcohol in the blood stream
does NOT constitute an exigency that in every case is sufficient to justify conducting an involuntary blood test
w/o a warrant.
 Court considers the totality of the circumstances when deciding whether justified.
 Blood draws = full searches.
 IF it is reasonable that the officer can get a warrant then they must get the warrant. If they cannot get
a warrant, then EC applies.
o There is no bright line rule—need to look @ the TOC.

 Once the exigent circumstances are neutralized—the WR exception is no longer there.

 The WR Exceptions are to be NARROWLY APPLIED, and once the exception circumstance
ends, the exception ends, & a warrant is required!!

PC TO SEARCH & PC TO ARREST ARE DIFFERENT & ALLOW FOR DIFFERENT THINGS!
VERY IMPORTANT TO REMEMBER WHEN EVALUATING!

Plain View/Plain Feel & Searches Incident to Arrest:

 Searches Incident to Arrest = SITA
 SITA  PC to arrest
o Allows search w/out a warrant.
o PC to arrest is all the justification that is needed to search.
o SITA makes it so even w/out PC & a warrant or WR exception, a search can still happen if
there is PC to arrest.
o A warrant is a determination that there is PC, no more PC is needed.
SITA based on PC—An officer may search the arrestee and the area in her immediate control just prior to the
arrest:
1. for weapons for which she could gain access; or
2. for evidence of the crime for which she was arrested.
 In these cases, no PC to search OR warrant is needed! All that is required is PC to ARREST!!
13
  Exception applies to vehicles—police may search the entire passenger compartment under SITA
exception regardless of whether PC to search vehicle.
o IF search of vehicle is based on SITA instead of PC to search vehicle—the search is
limited to: (1) weapons the arrestee could gain access; or (2) evidence of crime for
which person was arrested.
Arizona v. Grant: Police may search a vehicle after a recent occupant’s arrest only if arrestee is w/in reaching
distance of the passenger compartment at the time of the search or it is reasonable to believe crime—related
evidence is located in the vehicle.
 Δ had a standing warrant for his arrest, the police searched his car thinking it was a SITA. Court says
NO b/c SITA is strictly limited to where it can occur and what they can search for!! The officer
was in full control of Δ, who was no longer near the car.
 Car cannot be search b/c Δ no longer has access to the car in order to be a threat to the officers and
b/c the car would not have any evidence of Δ’s suspended license (Δ driving is all that was needed).
Riley v. California: Under the 4th Amendment the government may not conduct a warrantless search of contents
of a cell phone seized incident to an arrest absent EC.
 Searching an arrestee’s cell phone generally is not allowed under SITA and generally a warrant is
needed to search the data of a cell phone.
- REMEMBER NEED (1) PC and (2) WARRANT OR WR EXCEPTION!
SITA is (1) limited in space (immediate control); and (2) limited in scope to (a) evidence of crime for
which there is PC to arrest, or (b) weapons to which the suspect could get access.
 Sometimes more than one warrant requirement for a given situation.
 Police are able to look anywhere evidence may be for SITA.
 A pat down is always justified when a person is arrested.
 When SITA, a motor vehicle, the Court has said that only limited to the interior of the vehicle that
was in immediate control of the arrestee immediately prior to the arrest.
o Trunks, truck beds, engine blocks, locked compartments, etc., are not included in allowed
area.
 SITA limited in scope and area—no PC needed b/c arrest enough.

Plain View/ Plain Feel = PVPF

14
PVPF Doctrine: Evidence that is (1) discovered w/in the scope of officer’s lawful activity; and (2)
immediately apparent that is evidence of a crime.
 This is premised that w/out searching you discovered something that is evidence of a crime which
doesn’t give you PC to Search, but it does give you PC to SEIZE.
 PVPF applies to warrantless seizures
o If police are in a place lawfully and in the course of their lawful conduct in that place, either
observe in plain view evidence of a crime, or feel an object that is evidence of a crime, they
may seize the evidence without a warrant.
 In order for PVPF to apply, it must be immediately apparent to the officer that there is PC to believe
that the thing discovered is evidence of a crime.
 PVPF justifies warrantless Seizures, NOT warrantless searches.
Arizona v. Hicks: The plain view doctrine can only be invoked to seize the evidence if the police have probable
cause of the evidence’s incriminating character.
 W/in scope of lawful activities as long as PC + WR or WR Exception.
 PV => PC to SEIZE.
1. w/in the scope of lawful activity; and
2. immediately apparent.
 Officer had to life radio to get serial number (this was an additional search) which was not w/in the
scope of their lawful activity b/c not w/in EC.
 Must be strictly w/in scope of the officer’s lawful activity!!
 Very strict adherence to the PV doctrine
 You cannot open things up!
 PVPF premised on idea that no other search takes place, gives pc to seize evidence of crime, must be
immediately apparent that evidence of crime, if not have to leave it be. NOT AN EXCEPTION TO
SEARCH IT IS ONLY TO SEIZE!
Plain Feel—if police feel something and just from touching it, they recognize that there is a fair
probability that it is evidence of a crime, then they can take it.

THE MOBILITY EXCEPTION (ME):

Mobility Doctrine- Mobile objects which police have probable cause to believe are/or contain evidence of a
crime may be seized w/out a warrant.
15
  Packages may be seized w/out a warrant BUT NOT SEARCHED W/OUT WARRANT!!!
 Once seized, no danger of being lost.
 If PC to search a vehicle, then b/c of its mobility, the police may search anywhere in the vehicle
where evidence can be located.
o Does NOT MATTER IF IT IS ACTUALLY MOVING! If it is capable of moving → it is
considered mobile.
 Vehicles—if PC to search vehicle then w/o warrant may search anywhere in the vehicle that could
contain evidence—including closed containers.
 Creates exception for packages to be search w/out warrant if they are in a vehicle.

ME—PC that
Container has
ME—Package in public contraband & in
but NOT in vehicle— vehicle—it can be
can only be SEIZED seized and
NOT SEARCHED Searched
(opened) (opened)

by Unknown Author is
licensed under

California v. Acevedo: The 4th Amendment permits warrantless searches of containers found in automobiles if
there is PC to believe the container contains contraband.
 If police have PC that contraband in container in a vehicle (moveable) they may search w/out a
warrant BUT search MUST BE LIMITED to ONLY container, UNLESS PC that contraband
elsewhere in the car.
Rule: When out in public—packages, b/c they are mobile—they can be seized w/out a warrant, but they
CANNOT BE OPENED w/out a warrant!
Rule: Package in vehicle—when a package is in a vehicle, it then is part of the vehicle—therefore the package
can be searched (opened) w/out a warrant as long as there is PC to believe there is evidence of a crime inside
the package!
Wyoming v. Houghton: Where an officer has probable cause to search a car, he may search containers that
belong to a passenger in the car IF the containers could possibly contain the object of the search.
 Police can search a passenger’s personal belongs inside an automobile that they have PC to believe
contains contraband b/c those belongings become part of the car and the mobility exception applies.
 Mobility DOES NOT apply to people—ONLY APPLIES TO vehicles & objects!
16
  If the police need a warrant to enter, & they do not have one—they CANNOT ENTER W/OUT a
WR Exception—even if the person they are looking for is in plain view (unless they have a warrant
to arrest).

EXCEPTIONS TO THE EXCLUSIONARY RULE—GOOD FAITH MISTAKE:

 The exclusionary rule is a judicially created remedy that is justified only to the extent that the benefit
of applying it (deter police misconduct) outweighs the cost of applying it (excluding relevant
evidence which may allow guilty to go free).
 Exclusionary rule is not a right in & of itself—it is a judicial rule.
 Exclusionary rule is a rule of evidence that was created to deter police misconduct.
 If cost of applying exclusionary rule greater than the benefit of the rule, the court will admit the
evidence.
If you want to assert ER for 4th & 5th, you are going to have to give up testifying in your own behalf usual.
 Unlawfully obtained evidence does not need to be excluded during sentencing.
 Ask whether the police are acting in good faith or not.
United States v. Leon: Evidence obtained in reasonable, good faith reliance on a facially valid search warrant
is not subject to the 4th Amendment exclusionary rule, even fi warrant is later deemed defective.
 Faulty warrant was not the police’s fault, and they thought it was valid.
 There was not any police misconduct to deter.
Heien v. North Carolina: a mistake of law can give rise to the reasonable suspicion necessary to uphold a
warrantless seizure under the 4th Amendment.
Must the unlawfully obtained evidence be excluded?
No if:
1. Used for impeachment of Δ’s testimony
2. Not used during the guilt/innocence phase,
3. Officer was acting on faulty warrant in good faith.

4TH AMENDMENT SEARCH & SEIZURE

17
 1. Was there a Search? No STOP! 4TH
(OREP, Trespass) AMENDMENT
DOES NOT APPLY!
Does the 4th Apply?
No
2. Was there a seizure?
Yes

3. What Kind?
 Investigatory detention/ pat down?
 Full search?
 Custodial detention?
 Full seizure?
 Deadly force?

Was the Intrusion

Reasonable? 4. What kind of Justification is Required?
 Consent
 Admin & Investigatory Needs
 RSCAA
 RSSAD
 PC to search
 PC to Seize/ Arrest
 Garner

STOP! 4th Amendment

Does not Apply!
Yes Evidence is admissible!
5. Did they have it?

NO
YES

6. If PC Required—Did they have a Warrant or WR

Satisfy the Exception?
warrant
 Searches: (1) SITA; (2) vehicles; (3) protective sweeps;
requirement? (4) Exigent Circumstances; (5) Admin & Inventory
Searches requiring PC.
 Seizures: (1) Public place; (2) PVPF; (3) Mobility
Exception; (4) Exigent Circumstances.
No

RANDOM NOTES FOR 4th AMENDMENT:

7. Must the evidence be excluded?
18
  Lesser reason than PC is needed for a traffic stop—just need RSCAA.
 Officer has PC to arrest everyone in the car.
 Plain view is NOT an exception to the WR for a SEARCH! IT IS ONLY AN EXCEPTION TO
THE WR FOR SEIZURE!!
 Mobility exception—it does not matter if the car is not drivable—only that it is moveable!
 If PC to arrest—then they can search the immediate area around the suspect for evidence of the
crime and for weapons.
 Still need RSCAA if someone is armed. (RSSAD alone is NOT enough!)
 Mobility also applies to [packages.
 Inventory exception/search applies once the car is seized.
 The area w/in immediate control at last time the suspect was “free” can be searched per the SITA
rule.
 Mobility Exception for search & seizure:
o when talking about looking for evidence in an automobile, we are using the search
exception.
o For packages is a seizure exception not a search exception b/c you can’t actually search
the package.
o BUT if the package is in the vehicle—it is like everything else in the vehicle—it can be
opened and searched.
o For close calls remember the purpose of the exception—b/c the evidence might be
lost.
 SITA ONLY APPLIES TO WEAPONS AND EVIDENCE OF THE CRIME FOR WHICH
THE PERSON IS BEING ARRESTED FOR THAT’S IT!!!!!
 If there is RSCAA—then that means you can stop—without it—there is no basis for a stop.
 Terry stop is NOT an exception to the warrant requirement. The warrant requirement
does NOT apply b/c it is not a full search that needs a warrant!!!
 During a stop, if an officer finds drugs in the vehicle—the officer can frisk every person in the
vehicle for officer safety. If there are three people in the vehicle and one officer, you could argue
that the officer could frisk all of them for officer safety. If anyone has drugs—there is PC to
search the entire vehicle, including the other individuals in the car!
 The hot pursuit, EC exception applies to all arrestable offenses.

D. FIFTH AMENDMENT—CUSTODIAL DETENTION

 The Fifth Amendment states that no person shall be compelled to be a witness against themselves in any
criminal case.
o AKA right against self-incrimination.
RULE: Admitting confessions obtained through extreme interrogation practices, including physical torture
violates the Due Process Clause of the 5th & the 14th.

 Miranda v. Arizona created the bright line rule in order to protect against abuse of custodial
interrogation.
RULE: A suspect in custody, must be informed, before interrogation begins, of her rights to:

19
 1.To remain silent;
2.To have an attorney present;
3.Have one appointed for her if she can’t afford one; and
4.Waiving those rights means anything she says can be used against her in a prosecution against her.
 Failure to read rights prior to interrogation—anything the suspect says during the
interrogation is inadmissible.
 Unlike the 4th Amendment Consent, Waiver of Miranda must be more than merely voluntary:
- Must be intelligent & Knowing
- suspect must know of her rights and must understand the consequences of waiving
them.
To waive rights by suspect; IT MUST BE (1) KNOWINGLY; (2) INTELLIGENT; AND (3) VOLUNTARY.
CUSTODY IS REQUIRED FOR MIRANDA APPLICATION.
Rule: A person is in custody for the purposes of the 5th Amendment when:
1) She is under a formal arrest; or
2) When a reasonable person, under the totality of the circumstances, would feel she is deprived of
her freedom in a significant way.
 Fifth Amendment only applies to 4th Amendment custodial Detentions (not investigative detentions)
—that under the 4th requires probable cause.
o CUSTODY TEST: When a reasonable person subject to a “police dominated atmosphere”
would believe that she cannot terminate the encounter & that she has been deprived of her
freedom in a significant—not merely temporary—way she is in custody for Miranda
purposes.
 This is an objective test.
Thompson v. Keohane: State Court “in custody” determination are matters of mixed questions of law and fact
warranting review by federal habeas court.
 Miranda rules do not need to be said in any particular order! Just need:
1. These are your rights ___________ (K)
2. Here is what could happen if you waive them _________ (I)
3. Voluntary.
 Δ did not get 1 & 2
 Whether or not a decision to talk (voluntary) requires 1 & 2 & depends on whether the suspect is “in
custody”
 When determining whether S is in custody: Look at the totality of the circumstances Test:
o Objective Analysis—and must look at the time/moment the suspect confesses what a
reasonable person would believe.
o (police are not obligated to tell the truth about anything but your rights & what could happen if
you waive them).
J.D.B. v. North Carolina: the age of a child subject to police questioning is relevant to whether the child is in
custody under Miranda.

20
Rule: Interrogation for 5th Amendment purposes means either: (1) direct questioning about involvement in a
crime; or (2) words or acts by police reasonably likely to elicit an incriminating response.
Rhode Island v. Innis: under Miranda “interrogation” refers to any words or actions by the police that the
police should know are reasonably likely to elicit an incriminating response.
 Direct questioning is not the only form of interrogation. Words and actions that are intended to elicit an
incriminating response also constitutes as interrogation.
 The actions & words must be reasonably likely to elicit an incriminating response.
Miranda v. Arizona: Without certain hallmark warnings regarding the right to remain silent and right to
counsel statements made during a custodial interrogation are inadmissible at trial.
 Once a suspect receives her warnings, she must unambiguously invoke her rights to terminate
investigation—if she does not—interrogation may proceed until she does.
 A suspect simply being unresponsive is not enough!
 A prosecutor may comment freely on a suspect’s silence unless the suspect unambiguously invokes.
 May invoke at any time—at which point the interrogation MUST cease.
 Statements excluded b/c violated Miranda can be used in cross exam if Δ testifies, and in sentencing and
other proceedings as long as not used for prosecutor’s case in chief.
RULE: Unless the suspect waives her rights, her invocation means the police cannot re-approach her and ask her
to waive her rights until she has bene out of custody for 14 days.
Berghuis v. Thompkins: Where a Δ does not invoke his right to remain silent after fully understanding his
Miranda warnings, he implicitly waives those rights when he makes a statement to police.
 Δ didn’t sign the waiver but read and heard them. Did not say anything except a few statements that
were incriminating.
 SCOTUS says that one can invoke their rights expressly and by implication. The same for waiver.
 Absence of express statement, it can be assumed that the person has waived their rights. Invocation
MUST be unambiguous.
 YOU CANNOT REMAIN SILENT TO INVOKE YOUR RIGHTS.
 You can’t invoke your rights unless you are in custodial detention. Investigatory detention does not
count.
 Invocation can be at any time/ after a waiver.
 5th Amendment rules are more protectiong over suspect than the 4th—b/c @ greater risks of losing
liberties.
 14th Amendment—no matter what, the decision to provide evidenc eagianst oneself MUST BE
VOLUTNARY
 5th Amendment, decision must be (K)nowing & (I)ntelligent & (V)oluntary.

21
 3 Stages of Criminal Process:

Interrogation (5th--
Interrogation Knowingly,
Voluntariness Adjudication
Intelligently
14th &
(4th--Voluntary)
Volutnary)
(6th)
Waiver:
 5th amendment, awaiver of one’s right must be knowing & intelligent & voluntary. This means the
suspect must:

1. Understand her rights;

2. Understand the consequences of waiving them; and
3. Decide to waive them of her own free will.
 A supsect may waive her rights at any time, in either two ways:
1. Expressly; or
2. Implicitly, by speaking after she has been informed of her rights before
unambiguously invoking them; or by re-engaging police in conversation aobut her alleged
crime after she has already invoked.
 Police are not required to inform suspects that by initiating discussion post-invocation creates waiver by
implication.
 Suspect may invoke at anytime—must be unambiguous—while waiver can be implied.
Edwards v. Arizona: once a suspect has received his Miranda warnings & invoked his right to counsel, the
polcie may not further interrogate the suspect until the suspect has been given access to counsel, unless the
suspect initiates further communications with the police.
 Interrogation does not just mean quesitons related to a crime, also means words and statements likely to
elicit an incriminating or exculpatory response.
 Police cannot innitiate the discussion after the suspect invokes!
 If a jailhouse snitch acts on behalf of the police and not on his own, it will count as further interrogation.
 There can be times when police on their own, approach a suspect for further investigation.
Maryland v. Shatzer:A 14 day break in custody ends the presumption of involuntariness established in Edwards
v. Arizona.

22
  Court says that when a suspect has been out of custody for a sufficient amount of time (14 days), the
police may reapproach the suspect evne if the suspect previously invoked to have counsel present and to
remain silent.
 In this case, the Court said that Δ was out of custody b/c he was no longer in the police dominated
interrogation atmosphere and had gone backto regular/normal life for 14 days.
 There is a motivation for police to not handcuff a suspect so they can search the car (for a WR
exception)
 Direct questioning about S’s involvment in a crime is a good clue that it was an interrogation.
o Statemetns that incriminate another person can be admitted against that other perosn, even if his
Miranda warnings were not read.

Custodial Interrogation Exceptions to the Exclusionary Rule:

 The right against self-incrimination as appleid to custodial interrogation prohibits only the introduction
during prosecution’s case in chielf of: (a) statements made by the Δ; (b) while in custody; (c) while
being interrogated. If prior to the itnerrogation, Δ was not informed of his Miranda warnings, OR if
having been informed of those rights, and having invoked htem, the statements were produced through
police-initiated interrogation.
 The 5th Amendment does not prohibit the introductin of statements to convict others or when sentencing
the Δ.
 The 5th Amendment DOES NOT PROHIBIT THE INTRODUCTION OF PHYSICAL EVIDENCE
OR EVIDENCE THAT CAN BE USED TO IMPEACH Δ’S TESTIMONY.
New York v. Quarles: there is a public safety exception to the requirement that Miranda Warnings be given
before a suspect’s statements may be admitted into evidence at trial.
 This is a public safety exigent circumstances exception example.
 Need to ask whether a reasonable person would feel like the situtiation was lengthy and impeeding on
their freedom of movement when determining whether in custody.
 In this case, the statements about where the gun was should not be exluded b/c there was a public safety
exception.
 The purpose is to keep public safe not deter police conduct.
 Courts construe Miranda as narrow as possible.

United States v. Patane: Because the introduction of physical evidence at trial does not implicate the self-
incrimination clause, suppression of physical evidence found as a result of the suspect’s voluntary but
unwarned statements are admissible.
 Self-incrimination clause applies only to statements NOT physical evidence.
 As long as the Δ’s unwarned incriminating statements are not being used in the Prosecutor’s case in
chief, the 5th Amendment has not been violated.
 Miranda does not require a suspect in custody to be warned, only requires that the unwarned
incriminating statements not be used in the prosecutors case in chief.
 Miranda is not part of the 5th, it’s designed to protect the 5th.
 The full Miranda must be read, even if the suspect cuts off and says that he knows his rights.

Mincey Pt. II: A Δ’s involuntary statements cannot be used against him in any way at trial.
 SCOTUS sasy statements cannot be used b/c they were not voluntary.
 ALWAYS NEEDS TO BE VOLUNTARY.
 Mincey’s notes cannot be admitted because they were testimonial.
23
  If suspect formally arrested → in custody.
 Words—written or verbal → testimonial.
 If suspect takes the stand → then statements taken in violation of Miranda can be used for impeachment
purposes.
 After running through the steps for the 5th Amendment, then go to the 14th questions.

5TH AMENDMENT ANALYSIS:

1. Was the suspect in custody?
2. Was the suspect interrogated? If yes,
3. Was the suspect Mirandized? If yes,
4. Did the suspect invoke?
 If NO → STOP 5th Amendment does not apply—statements may be admitted.
 If YES,
5. Did the questions cease?
 If YES → STOP no 5th Amendment violation.
 If NO → 5th Amendment violation → Evidence must be excluded.
6. If interrogation resumed—Did the suspect initiate?
 If YES → Go back to question #1.
7. If No, had the suspect been out of custody for 14 days?
 If YES → go back to question #1.
8. Must the evidence be excluded?

14TH AMENDMENT ANALYSIS:

1. Was the evidence produced/obtained by overcoming the suspect’s will?
 e.x. credibil threat of harm to one’s self or physical harm to children.
 Yes = evidence must be excluded.

Random Notes for 5th Amendment:

 Invocation is not dependnet on the officer’s reactions.
 You do not need to invoke your right to counsel and silence—you can only invoke to silence.
 Reeination must be statements related to the crime.
 The only violation of 5th Amendment for disobeying Miranda rules is if the statements are introduced
against the suspect in the prosecutor’s case in chief.
 If you invoke your right to counsel under Miranda, and the polcie continue to talk to you and try to
obtain evidence, this does not violate your rights under the 5th. The violation under the 5th comes
when the information obtained in violation of miranda is sued agianst you in court!!! Your 6th
Amendment right doesn’t attach until you have been charged.
 5th Amendment interrogation = words or acts reasonably likely to elicit an incriminating response.
 Age 13 is the cutoff for considering a person’s age in whether a reasonable person would feel free to
leave the situation.
 If a suspect says “I want a lawyer” followed by an incriminating statement—then that statement can
come in b/c it was not a prompted statement by police. Could aruge that the perosn invoked and then
immediately waived. t/f statement can come in.
 By invoking yoru right to cousnel you have not invoked your right to silence. You can still talk with the
presense of an attorney. Questioning can continue then once the attorney is present.

24
E. FRUIT OF THE POISONOUS TREE DOCTRINE:
 Fruit of the poisonous tree doctrine = FOTPT or PTD
FOTPT requires us to ask whether lawfully obtained evidnce that would not have been obtained but for
some unlawful act, must be excluded.
 TWO key ideas:
1. Evidence that would NOT have been obtained but for an unalwful act, must be excluded, even if it
was obtained lawfully.
2. Evidence that either was, or inevitably would have been discovered independently of the
unlawful act, does not need to be excluded.
Nix v. Williams: Evidence obtaiend in violation of the 6th Amendment may be admitted if the polcie inevitably
would have discovered it.
 Prosecution has to prove by preponderance of evidence that the evidence would have been inevitably
been found.
 Even if the evidence is obtained unlawfully doesn’t fall w/in one of the categoriacal exceptions to the
exlcusionary rule, it still doesn’t need to be excluded if the cost of exclusion outweighs the benefit of
exclusion.
o Cost-benefit anlaysis should always be applied to the decision of whether to excluded evidence.
Utah v. Strief: Unconstituionally seized evidence is admissible if lack of flagrant impropriety, lack of temporal
proximity, or an interveining circumstance attenuates the chain b/t police misconduct and the seizure.
 FOTPT—sometimes we exlcude evidence that is lawfully obtained.
 On exam—think about the FOTP as another check when reading the fact paterns!! It is the final
check AFTER the 4th, 5th, & 6th amendment analysis.
 Follow the chain backwards to figure out if the unlawful act was independent of the intrusion.

FOTPT DOCTRINE ANALYSIS:

1. Was the evidence obtained through a lawful act?
o If no—FOTPT does not apply.
2. If yes, was there a previous or contemporaneous (existing) violation of the 4th, 5th, 6th, or 14th
Amendments?
o If No—STOP—FOTPT does nto apply.
3. If yes, Was the evidence obtained independently of the unalwful act?
o If Yes—evidence need not be excluded.
4. If NO, would the evidnce have been inevitably obtianed, regardless of the unlawful act?
o If YES—evidence need not be excluded.
5. If NO, was the unalwful act sufficiently attenuated form the lawful act to break the chain of causation
between the unlawful act and the evidence obtained?
o If YES—evidence need not be excluded.
o IF NO—evidence should be excluded.

F. SIXTH AMENDMENT—RIGHT TO COUNSEL:

 The 6th Amendment comes into effect the moment a suspect becomes a Δ: When she is formally charged
through a process such as an arraingment or indictment.
 6th Amendment is the right to counsel to assist in the defense.
 5th Amendmnet does not provide a right to an attorney during an interrogation.

25
  The 6th is an aboslute right and is triggered when the person goes from a suspect to a Δ, when the
person is formally charged with the crime.
o Being brought before a judge is what moves the you from suspect → Δ—which is when the 6th
Amendment attaches. Indictments are included even though not brought before judge.
RULE: Under the 6th Amendment, neither law enforcment nor those acting on their behalf may deliberately
elicit incriminating information from a Δ.
o Unless the Δ has expressley waived right to counsel, any and all communication’s must go
through the Δ’s counsel.
 This is flipped from the 5th Amendment.
o 6th Amendment right to counsel = right to effective counsel.
o The judge reads the rights to attorney for the 6th Amendment to the Δ.
Massiah v. United States: A person who has been indicted on criminal charges has as much of a constitutional
right to have counsel present during police interrogations as he does at trial itself.
 The police using an informant to elicit information from Δ = interrogation for this purpose.
 Because the questions and statements were done w/out Δ’s counsel present, they must be excluded.
 Have to ask whether acting in behalf of the police.
 Case broadened the 6th Amendment.
 Suspect MUST now be a CHARGED Δ!!
 Similar to jail house snitch.
Brewer v. Williams: a defendant has not effectively waived his right to counsel if at the advice of counsel he
continues ot invoke his rights to remain silent, until he has the opportunity to confer with his attorney but then
makes setatements after being subject to police interrogation.
 State MUST prove that Δ knowingly & intelligently waived their right to counsel.
 Because Δ was arraigned, and b/c he didn’t waive the 6th Amendment right and his attorney was not
present when the evidence was obtained—evidence must be excluded.
 Once the 6th Amendment right to counsel attaches, it must be expressly and unambigously waived.
 The right applies whether or nto incustody or intterogated.
o Unlike the 5th where the right needs to be invoked.
 Definition of interrogation is broader for the 6th than it is for the 5th.
For the 6th—the intent of the police matters for the definition on itnerrogation—the 5th looks at the
liklihood to get an incriminating response.

6th Amendment Analysis:

1. Has the 6th Amendment right to counsel attached?
o If no—6th Amendment doesn’t apply.
2. If yes, Did the Δ expressly waive his 6th Amendment right to assistance of counsel?
o If Yes—evidence does not need to be excluded—6th Amendment right not violated.
3. If No, Was the attorney present when the evidence was obtained?
o If yes—evidence does not need to be excluded, 6th amendment was not violated.
o If No—6th Amendment was violated.

INNEFECTIVE ASSISTANCE OF COUNSEL:

 Innefective assistance of counsel = IEAOC
 SCOTUS has recognized that the 6th Amendment assistance of counsel as the right to effective
assistance of counsel.

26
  Innefective assistance is a violation of the Δ’s 6th Amendment right.
RULE: A Δ must satisfy two prongs when claiming ineffective assistance of counsel:
1. Δ must overcome the strong presumption that an attorney’s representaiton fell w/in the wide range of
professionally competent assistance; and
2. There is reasonable probability that, but for, the attorney’s unprofessional errors, the result of the
proceeding would have been different (Δ would have gotten a significantly better result).
o Very difficult standard to satisfy!
Tice v. Johnson: issue is whehter Δ’s counsel assitance fell so far outside professional competence.
 There was no reason for Δ’s attorney to not know the evidence
 If rational choice → then no 6th Amendment vioaltion (even if wrong choice).
 When doing a 6th Amendmetn evaluation, must break it down piece by piece! i.e. in the moment did the
attorney make a rational decision?
 When Δ has exhausted all of his state appeal options, he can file a writ of habeas corpus to answer the Q
of whether Δ’s constitutioanl rights were violated.
o To jump from state court to federal court for HC—need to answer a 3rd Q—whether the State
Court’s decision lies well outside the boundaries of permissible differences of opinion. Very rare
for the Court to say yes.

IEAOC ANALYSIS:
1. Did the attorney’s representation fall within the wide range of professional competence? Was there a
rational decision?
o If yes—the representation was not constitutionally ineffective.
2. If no, but for the acts outside the wide range of professional competence, would the defendant likely
have received a materially different result?
o If Yes—the defendant received constitutionally ineffective assistance of cousnel and is entitled to
a new trial.
o If no—the representation was not constitutionally ineffective.

FINAL TIPS:
 Start with question 1 from the 4th amendmetn for every case and question and move thoruh each step all
the way to the end.
 Final will be 20 questions 2 ½ hours.
 Tehre is a place to explain my ansewrs for any five that I choose. Only get 25 words to explain self. He
will only look at explanations if I get the answer wrong.
 Read the problem and do it one step at a time.
 Pay attention to what amendment is being applied.

27